Correction appended, Feb. 13, 2016
The conservative’s untimely demise in Texas this weekend upends the GOP, a party already in turmoil, and potentially the Supreme Court. Senate majority leader Mitch McConnell has already said that Scalia’s replacement should not be picked until a new President is.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said in a statement Saturday.
Democrats pushed back. Senate minority leader Harry Reid: “The President can and should send the Senate a nominee right away. With so many important issues pending before the Supreme Court, the Senate has a responsibility to fill vacancies as soon as possible. It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential constitutional responsibilities.”
At stake is control of the court. Currently the court swings 5-4 conservative. But if President Obama manages to confirm a liberal to the bench, it will swing the court 5-4 the other way. This could have profound and reaching implications on everything from abortion and women’s rights to campaign finance and Second Amendment rights.
Given this, it is no wonder that McConnell doesn’t want this Congress to weigh in. Not only are three Senators currently running for President — Senators Bernie Sanders of Vermont, Ted Cruz of Texas and Marco Rubio of Florida — but handing Obama this one last victory would almost certainly impact Senate and gubernatorial races nationwide.
The Republican Party is already splitting between the Establishment and anti-Establishment wings. If the Establishment were to cave on this nomination, the anti-Establishment wing would gain even more power, ahead of key primaries that will not only pick the next presidential nominee but nominees for state and federal races. In many cases, if extreme anti-Establishment candidates win those primaries, they won’t have a shot in the general election.
Already, McConnell has a tough battle ahead keeping his slim four-seat majority. Republicans in seven states that Obama won both in 2008 and 2012 are up for re-election: Florida, Illinois, Indiana, New Hampshire, Ohio, Pennsylvania and Wisconsin. Five of those races are currently toss-ups. So not only would presidential hopefuls like Cruz and Rubio be forced to vote on a potential court-changing nominee, but so would all eight of those vulnerable Senators.
Still, such a delay would be unprecedented. The next President won’t be sworn in for another 11.5 months, and the average confirmation time of all Supreme Court nominees since Gerald Ford’s presidency is just 67 days. And, notably, in Ronald Reagan’s eighth year in office, Democrats confirmed his last nominee to the bench, Justice Anthony Kennedy.
Obama is sure to nominate someone. And that poor soul will likely have a long, rough road to confirmation. Many unprecedented questions come to mind: If that person isn’t confirmed by the end of the Obama Administration, would Sanders or Hillary Clinton re-nominate that person? If the winner of the presidential contest is a Republican, surely they would nominate someone else. But who that might be also throws open many more questions: Who might Donald Trump nominate? Or Ted Cruz?
If McConnell insists on delaying, it will almost certainly blow up the Senate, with Democrats refusing to allow Republicans to do much — not that much was getting done anyway in an election year. The Senate functions on a modicum of bipartisanship, without which it can’t so much as read the morning prayer or hold committee meetings.
It also potentially brings Supreme Court proceedings to a halt — what happens when case after case splits 4-4? Scalia’s death could effectively bring two branches of the government to a functional standstill for at least a year. Just when you though Washington had reached its pinnacle of dysfunction, a new branch of government gets mired in it.
Correction: An earlier version of this story misstated the number of Senate elections in 2016 that are in states Obama won in 2008 and 2012.